Archive for Monday, September 5, 2005

Confirmation hearings now thrown into turmoil

Process could conceivably return Sandra Day O’Connor to bench

September 5, 2005


— The death of Chief Justice William H. Rehnquist has complicated White House plans for a smooth and quick confirmation for Supreme Court nominee John G. Roberts Jr.

Several members of the Senate Judiciary Committee said Sunday they were considering a delay in the Roberts hearings, which are scheduled to start Tuesday, so as not to interfere with the funeral plans for Rehnquist, the nation's 16th chief justice, or the federal response to Hurricane Katrina.

Rehnquist, who died Saturday at his home in Arlington, Va., will lie in repose in the Great Hall of the Supreme Court on Tuesday and Wednesday. After funeral services Wednesday, he will be buried at Arlington National Cemetery.

President Bush has the option of naming Roberts as his choice for chief justice, but that also could delay the hearings.

Either way, the president must make a second choice for the Supreme Court, and many legal experts predict that rather than choose another conservative white male, such as Roberts, Bush might opt for a woman or a minority. Much speculation focused on Bush's attorney general, Alberto R. Gonzales.

Keeping O'Connor on

Roberts, a former clerk to Rehnquist, appeared headed for an easy confirmation to fill the seat of retired Justice Sandra Day O'Connor.

Judiciary Committee Chairman Arlen Specter, R-Pa., was consulting Sunday with senators and the White House about whether to put off the hearings for a few days or perhaps a week.

Roberts' chance of succeeding Rehnquist as chief justice is a "realistic possibility," said Jay Sekulow, counsel to the American Center for Law and Justice, a conservative interest group.

"Anything is possible now, and John is very well qualified," said Sekulow, who is helping the administration promote Roberts' nomination.

Although Roberts, 50, has spent only two years as a judge on the U.S. Court of Appeals, he has long experience as a lawyer before the Supreme Court.

By contrast, the 49-year-old Gonzales, has virtually no experience working as a lawyer or judge in the federal court system. During the 1990s, he was a counsel to then-Texas Gov. George W. Bush and served briefly on the Texas Supreme Court. He then served as Bush's White House counsel before being named attorney general earlier this year.

Rehnquist, 80, had a deep knowledge of constitutional law and was a master at leading the court's private conferences, according to his colleagues. The chief justice's duties include giving a summary of the legal issues in each of several dozen cases to be discussed, and then offering his view on how they should be resolved. It would be a daunting task for a newcomer who has not worked on federal legal issues before.

It would be easy for the president to switch gears on the Roberts nomination. He could withdraw his nomination to be an associate justice and resubmit his nomination to be chief justice, lawyers and judiciary committee staffers said Sunday.

"The president can do that without almost any uncertainty because he knows how the Roberts nomination (for associate justice) has been received, said Brad Berenson, a Washington lawyer who worked for the Bush White House. "Barring something unforeseen, he would be easily confirmed for chief justice."

Berenson added: "This is the only scenario in which the court could begin the term with a full complement of justices, since Justice O'Connor pledged to stay on until her successor is confirmed."

Finding a nominee

Bush on Sunday praised Rehnquist as "a man of character and dedication. He honored America with a lifetime of service, and America will honor his memory."

The president said he "will choose in a timely manner a highly qualified nominee" to succeed the chief justice.

Bush could choose an existing member of the court to be chief justice. The likely candidates would be Justices Antonin Scalia or Clarence Thomas, but either of them would set off a major battle in the Senate.

The president might also choose federal appellate judges J. Michael Luttig or J. Harvie Wilkinson - both from Virginia and both also favorites among conservatives. But Democrats have said they would strongly oppose either.

Politically, Bush may be weaker than when he nominated Judge Roberts, analysts said. His approval ratings are down, opposition to the Iraq war is growing, and even some Republicans criticized the administration's response to Hurricane Katrina.

Stuart Rothenberg, publisher of a Washington-based political report, said Bush faces "an opportunity but also a challenge in finding the right person."

"The president's poll numbers are probably going to encourage Democrats to take him on," he said.

Another intriguing candidate possibility is Judge Edith Clement, who was seen as a strong contender to fill the O'Connor seat. Last week, she had to flee her New Orleans home because of Hurricane Katrina.

A Bush appointee to the U.S. appeals court in New Orleans, she would be "hard to challenge" if nominated because she has a short paper trail, Chemerinsky said.

And now, he added, she has the added cache of coming from storm-stricken New Orleans.


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